This matter is before the Court on Defendants' Motion for Summary Judgment

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pursuant to Fed.R.Civ.P. 56. [Docket No. 33.] The motion seeks summary judgment on Plaintiff's claims for discrimination under 42 U.S.C. § 1981 and the New Jersey Law Against Discrimination, N.J.S.A. § 10:5-12 (" NJLAD" ) Plaintiff claims that she was terminated from her employment with Defendants on the basis of her race and her national origin. Defendants claim that Plaintiff was a subpar employee and that she abandoned her employment. The Court heard oral argument on the motion on October 29, 2013. In addition, Plaintiff moves for permission to file a sur-reply brief. [Docket No. 38]. For the reasons stated on the record during the hearing on the motions, and the reasons set forth below, Plaintiff's Motion for permission to file a sur-reply brief is granted and Defendants' motion for Summary Judgment is granted in part and denied in part.

I. Factual and Procedural Background

Julia Wesley (herein: " Plaintiff" ) emigrated from Liberia to America in 1997 and speaks with a thick Liberian accent. (Wesley Dep., 12:8.) Plaintiff received her degree as a Licensed Practical Nurse from Sarah Health Academy in May of 2009. (Id. at 22:24-23:3.) Her sister, Mama Zabay, who was also born in Liberia and speaks with an accent, is employed at The Palace Rehabilitation and Care Center, L.L.C. (" Palace" ), and encouraged Plaintiff to apply for employment with Palace. (Wesley Dep., 24:14-24, 25:3-4.) On or about August 22, 2011, Plaintiff completed an application for employment with Palace, and shortly thereafter interviewed with Ana Carian, Director of Nursing (collectively: " Defendants" ). (Wesley Dep., 30:5-25). Ms. Carian is Asian.

Plaintiff's orientation with Palace on August 24, 2011 began her 90 day probationary employment term. (Wesley Dep., 54:22-24.) Plaintiff was assigned to work the 11:00 p.m. to 7:00 a.m. shift at Palace on September 8, 2011. (Id. at 59:17-23.) Plaintiff's shift assignment was located in the " C Wing" of Palace and included caring for 50 patients, 19 to 22 of which were of Asian descent. (Id. at 67:9-14, 66:23-67:7.) Palace utilized an on site translator during the 7:00 a.m. to 11:00 p.m. shift, but no translator was on site during Plaintiff's 11:00 p.m. to 7:00 a.m. shift. (Id. at 71:21-72:8.) Plaintiff testifies that despite not having a translator on site during her shift, none of the residents ever complained to her that they could not understand her speech. (Id. at 111:12-18, 114:9-11.)

Defendant claims that Plaintiff's job performance was inadequate because she was often tardy and was inattentive to the needs of the patients. In fact, Plaintiff was tardy to her August 25, 2011 classroom training. (Wesley Dep., 56:24-25, 57:1-9.) Defendants accuse Plaintiff of being tardy six times in September, six times in October, and eight times in November. (Def. Reply Brief, 1-2.) Defendants also allege that Plaintiff had difficulty completing required documentation. (Wesley Dep., 70:25; 71:1- 2.) Plaintiff was responsible for completing a 24 hour report at the end of her shift and she admits that she often failed to complete the report. (Id.) Additionally, Plaintiff admits that she struggled to properly document the administration of narcotics. (Romero Decl., Exhibit L; Wesley Dep., 73-75.)

Dep., 27:15-22.) Ms. Jackson followed this suggestion, and met with Plaintiff on November 15, 2011 and extended her probationary period. (Wesley Dep., 67:3-7, 68:10-17.) During this meeting, Ms. Jackson also " counseled" Plaintiff on her tardiness. (Wesley Dep., 67:9-13, 69:10-13.) However, Plaintiff's tardiness continued during the extended probation, as Plaintiff was late six times in December. (Wesley Dep., 81:16-25. 82:1-23.)

On December 16, 2011, Plaintiff met with Ms. Jackson. The parties dispute the nature of this meeting. Plaintiff claims that she was told that she would no longer be working the 11:00 p.m. to 7:00 a.m. shift and was terminated. (Wesley Dep., 84:1-2, 10.) Defendants claim that Plaintiff was removed from this shift because of her perpetual tardiness; Defendants hoped that a shift change would result in a reduction of Plaintiff's tardiness. (Carian Dep., 55:17-22, Jackson Dep., 43:24, 44:1-5, 46:17-19.) Ms. Carian testifies that, despite being offered another shift, Plaintiff never contacted the staffing coordinator to choose another shift. (Carian Dep., 56:4-24.) Plaintiff, however, alleges that at the December 16 meeting Ms. Jackson told her she was terminated and that Palace intended to replace her with an Asian employee. Ms. Carian further explained that the residents would more easily understand and relate to an employee of Asian descent. (Wesley Dep., 88:25-89:4.)

Plaintiff was replaced by two nurses of Asian descent. (Id. at 92:10-93:12, 66:9-19.) Defendants allege that Plaintiff was never terminated; rather, she simply stopped reporting to work.[1] Plaintiff filed the Complaint on January 9, 2012. [Docket No. 1.] After discovery and motion practice, Defendants filed the present motion. [Docket No. 33.]

II. Jurisdiction

The Court has jurisdiction over Plaintiff's 42 U.S.C. § 1981 claim pursuant to 28 U.S.C. § 1331 and supplemental jurisdiction over the New Jersey Law Against Discrimination claim under 28 U.S.C. § 1367.

III. Standards of Review

A. Summary Judgment Standard

A motion for summary judgment will be granted if there is no genuine issue of material fact and if, viewing the facts in the light most favorable to the non-moving party, the moving party is entitled to judgment as a matter of law. Pearson v. Component Tech. Corp.,247 F.3d 471, 482 n.1 (3d Cir. 2001) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)); accord Fed.R.Civ.P. 56 (c). Thus, this Court will enter summary judgment only when " the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56 (c).

An issue is " genuine" if supported by evidence such that a reasonable jury could return a verdict in the nonmoving party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact is " material" if,

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under the governing substantive law, a dispute about the fact might affect the outcome of the suit. Id. In determining whether a genuine issue of material fact exists, the court must view the facts and all reasonable inferences drawn from those facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

Initially, the moving party has the burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp., 477 U.S. at 323. Once the moving party has met this burden, the nonmoving party must identify, by affidavits or otherwise, specific facts showing that there is a genuine issue for trial. Id.; Maidenbaum v. Bally's Park Place, Inc., 870 F.Supp. 1254, 1258 (D.N.J. 1994). Thus, to withstand a properly supported motion for summary judgment, the nonmoving party must identify specific facts and affirmative evidence that contradict those offered by the moving party. Anderson, 477 U.S. at 256-57.

In deciding the merits of a party's motion for summary judgment, the court's role is not to evaluate the evidence and decide the truth of the matter, but to determine whether there is a genuine issue for trial. Anderson, 477 U.S. at 249. Credibility determinations are the province of the finder of fact. Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992).

B. 42 U.S.C. § 1981 and ...

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